Who Needs International Lawyers When We Have Ilya Somin? (Updated Again)

by Kevin Jon Heller

Here I was, thinking that targeted killing raised complex and contestable legal issues that required painstaking analysis.  Fortunately, Somin sets me straight at Volokh Conspiracy by pointing out that, as a simple matter of logic, there is no legal difference between killing Admiral Yamamoto during World War II and killing a terrorist anywhere in the world today:

But most of the debaters have overlooked a key point. If it is moral and legal to individual target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case law and morality give the latter greater protection than the former.

[snip]

What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.

[snip]

First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies.

[snip]

In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.

Yes, surely! Stupid international lawyers, “overlooking” the obvious point that there cannot possibly be a difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war.

Nothing to see here, people.  Everything the U.S. does is fine.  Move along…

UPDATE: Somin responds to my post by claiming that I provide “no substantive critique” of his argument.  First, I have written extensively on precisely the IHL issues that he ridicules, most recently here.  Second, Somin did not make a substantive argument, other than to claim that the “enormous scale” of al Qaeda’s activities qualify as a “war.”  That’s empty rhetoric, not an argument.  Who counts as “al Qaeda”?  What kind of armed conflict is it?  What status do “terrorists” have in that “conflict”?  Are all terrorists equally targetable?  All the time?  Somin makes no attempt to address, much less answer, any of those questions — because, of course, he is “surely” correct and we dumb international lawyers have “overlooked” the obviousness of his conclusions.

If Somin wants to engage with the legal issues instead of simply assuming that he is correct, I’m happy to provide a substantive critique of his argument.

UPDATE 2: Somin replies again, and only makes things worse for himself.  He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.”  Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.

That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines.  It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.  As reflected in Common Article 2 of the Geneva Conventions (and this is really IHL 101), international armed conflict can exist only between states.  By Somin’s own logic, therefore, it is only legal to target terrorists who are part of an international armed conflict between states.  And that means UBL’s killing was actually illegal, because the international armed conflict between the U.S. and Afghanistan ended when the Taliban lost power in 2002.

UPDATE 3: Somin now claims that “[n]othing in Heller’s argument turned on a distinction between ‘international’ and ‘non-international’ armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction.”  Apparently, he is unaware that we are talking about NIAC when we examine “whether hostilities rise to the level of armed conflict”; there is, as readers know, no threshold for international armed conflict.  And, of course, my discussion with Marty Lederman specifically discussed NIAC — again and again — in relation to the combatants’ privilege.

Somin also fails to understand Hamdan.  He writes:

As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.”

The first part of that statement indicates that Somin has no understanding of the concept of belligerency: as I’ve noted before, the reason the Civil War qualified as a war and not an insurrection was that Europe formally recognized the conflict as a state of belligerency and declared itself neutral in the conflict.   And the second part of the statement just concedes my point that Hamdan recognized that the “war” with al Qaeda did not and could not qualify as an international armed conflict.

Oh, and by the way, Somin also grossly mischaracterizes Hamdan.  The majority opinion used the expression “war with al Qaeda” precisely twice — and both times when the majority was characterizing the Court of Appeals’ decision that it was rejecting: “The court accepted the Executive’s assertions that Hamdan was captured in connection with the United States’ war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan. It further reasoned that the war with al Qaeda evades the reach of the Geneva Conventions.”  The majority never referred to the conflict with al Qaeda as a war, because it — unlike Somin — understood that  “[t]he term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”

Someone’s hole is indeed getting deeper.  But it’s not mine.

http://opiniojuris.org/2011/05/13/who-needs-international-lawyers-when-we-have-ilya-somin/

15 Responses

  1. On the other hand, who needs international lawyers if they’re going to keep their mouths shut when needed most, as too often seems to be the case these days when their country’s actions are the subject of controversy.  [The President's unilateral initiation of hostilities against the nation of Libya, for example, is imminently about to flagrantly violate the War Powers Resolution by any interpretation of its terms - to crickets, by and large, from America's professors of international law.]
     
    I understand, and appreciate (in fact, commend), the hesitation to publicly draw conclusions with regard to the events of May 2nd in Pakistan, given the conflicting and incomplete facts reported to date.  But the international law/law of war profession should at least be publicly pointing out that no firm conclusions can be drawn (about the legality or illegality of our unilateral application of overwhelming, lethal force abroad against non-uniformed individuals living in a civilian neighborhood of a nation whose government we help finance), until we know more about the key details of the military order and resulting operation as it in fact happened.
     
    So I’m very grateful to David Glazier, for one, who just set a good example by speaking up in an op-ed to highlight for the general public the “complex” legal landscape involved in the May 2nd killing.  I hope that more, lengthier contributions from Glazier, and other international law experts, will be forthcoming on this subject, particularly as more facts emerge about what happened that night.
     
    Our national discourse sorely needs to be informed by the referenced “painstaking analysis” of the “complex and contestable legal issues” of our military and/or CIA’s latest uses of “targeted” force abroad. Especially because we can be quite confident that our dissolute U.S. Congress – which has been vested with the power and the responsibility to examine and oversee these issues – won’t be conducting that careful analysis on our behalf, despite the resources we provide its members for that purpose, so long as its repeated failures to act remain ignored and shielded by a national media that’s busy serving the publicity needs of a power-hungry presidency at the expense of our Constitutional representative democracy.

  2. His substantive argument is as follows:

    Premise 1: Ilya Somin is U.S. citizen.
    Premise 2: Whatever U.S. says goes. There are no international courts necessary to prove any American legal argument.
    Conclusion: Ilya Somin is right.

    QED

  3. You might have also “overlooked”,  that Somin has made another groundbreaking discovery:  The term “war”  as a legally meaningful distinction from the term “armed conflict”. The textbooks of 101 IHL might have to be rewritten!
     
    Along Somin, armed conflict generally doesn’t trigger legality for target killing of terrorists. He distinguishes between “large-scale” and “small-scall” terrorist conflicts. Somin further argues, that the qualification as “large-scale” (which would allow target killings -> jus in bello) would merely be dependent on the motives for the war (atrocities committed -> jus ad bello). IHL topsy-turvy!
     
    Somins reasoning could be summarized as this:
    If you are a very evil and effective (Nazi, WII Japan, Osama) target killing is ok, if you are not so evil and effective (shoe-bomber) you are granted due process.

  4. The question of who may be targeted is generally referred to as DPH (Direct Participation in Hostilities). Viewed from the other side of the coin, IHL protects “civilians” from attack, and DPH explains who is not entitled to protection as a civilian.

    A “terrorist” is not subject to targeting because he is a terrorist. However, a civilian engaged in combat, including an attack that might be a terrorist attack or a conventional military attack, can be targeted while engaged in combat. You can use military (shoot first) rules rather than law enforcement rules against a civilian directly participating in hostilities during an armed conflict (international or non-international).

    A member of the regular armed forces of a state in an international armed conflict is always subject to targeting. The uniform is not a requirement. If Admiral Yamamoto is killed wearing civilian clothes or while he is naked, he is still a legitimate target since that decision is based on status and membership and not the uniform. That is important because the Army of Afghanistan under the Taliban did not wear uniforms, but they were still the regular armed forces of a recognized country, a member of the UN and a signatory to the Geneva Convention.

    A member of the armed units of a non-state party to a non-international armed conflict is subject to targeting if he is engaged in continuous combat function. What is interesting about Bin Laden is that at the time the attack was launched, he was not believed to be engaged in continuous combat function. It was believed that he was inactive and cut off from day to day operations. We discovered after the fact that he was engaged in continuous combat function, which may have made the attack retroactively lawful under DPH guidelines if you regard him as a member of an armed unit of a non-state party (AQ) to a NIAC.

    On the other hand, this started out as an international armed conflict with Afghanistan and its army under the Taliban. In that conflict, Bin Laden was a formal member of the chain of command of components of that army. That enemy never surrendered, never negotiated a peace, and is still in the field engaging in combat at this time. That we installed a government in Kabul and recognize it has no effect on the earlier armed conflict.

    To understand, assume that the Bush administration was wrong (should not be hard) and that the Army of Afghanistan under the Taliban was protected by the Third Geneva Convention on 9/18/01. I can find nothing in the Geneva Convention that allows us to remove its protection by the pretext of recognizing a different government for the enemy country. If that were true, anyone could get rid of this inconvenient Geneva nonsense by simply installing a “government” in some part of the enemy country, declaring that the war has now become a NIAC, and then disposing of the enemy soldiers as “criminals” under the laws passed by our puppet government.

    Therefore, I suspect that Bin Laden has status as a member of the regular armed forces of an enemy country in a international armed conflict that has not ended [and that international law does not allow you to transition to some other status until the enemy surrenders, makes peace, or is completely eliminated]. If so, he remained a legitimate target unless he retires from military service (which is a different rule than the requirement that he be currently engaged in continuous combat function). Under that construction, the attack on Bin Laden was permitted based on the information available before rather than just what we learned afterwards.

  5. The comments belittling Ilya Somin should keep in mind he has been published in prestige journals including: Yale, Stanford, UPenn, Stanford  and others.  You may not agree with his position but his publication record reveals he is a scholar.

  6. Not Taking Sides’s argument would imply that John Yoo’s positions were (are?) also worthy of attention. Fascinating…

  7. Just because you do not agree with someone’s position does not mean, as you cynically imply, the position opined is devoid of scholarly reasoning.  I do not believe Cornell, Yale, et al would accept his work if it were not scholarly. Again, maybe you are in total disagreement with the academic position he/she takes.  Fine, but those journals are known to be difficult to get accepted into.  These journals accept a very minute percentage of articles submitted so give the guy (no pun intended) some respect.

  8. Ilya misstating Hamdan is indeed an odd one.
    Either he voluntarily twisted the actual fact just to serve his reasoning or he did not read the courts opinion at all.
    Either versions are contradictory to my notion of academic excellence.

  9. NTS,

    I did not accuse Somin of being a bad scholar; I accused him of having very little understanding of IHL.  Somin is not an IHL scholar; he has never published on the subject, and his CV lists only two publications having anything to do with international law, both of which focus on human rights.  His bio, moreover, describes him as an expert on “constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.”  I have no doubt that he is an excellent scholar in those areas; indeed, I have heard as much.  But the fact that elite journals have published his work in those areas does not make him competent to write about IHL, nor does it mean that I have to “respect” — whatever that means — his views on IHL, which are simply incorrect.  That judgment is not about politics; it is about Somin not knowing the basic concepts of the field about which he so confidently and categorically opines.  Indeed, it was precisely Somin’s self-satisfied rhetoric that led me to write the post; it takes a special kind of arrogance to claim that an entire field of scholars has “overlooked” the (completely wrong) point that “If it is moral and legal to individual target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations.”  If Somin wants to write about IHL, fine.  We need more intelligent voices in the field.  But he should bother to know what he is talking about before he writes smug posts like the one I criticized.

  10. @ Prof. Heller

    p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; font: 13.0px ‘Lucida Grande’}
    Doesn’t this specific case (OBL) also give reason to discuss the interpretation of “active participation in hostilities” as a threshold for combatant status under Art. 3 GC ?

    Are you advocating a narrow reading of this term or do you think the status as a combatant can persist while not actively engaged in hostilities (“revolving door”). If the latter, what is necessary for the person to regain civilian status?

    I think this is of importance, as its not clear whether OBL was involved in the AQ armed conflict within Pakistan or if he still had command over any AQ fighter at all.

    Thank you.

  11. KJH
    You make excellent points.

  12. Ian:

    “Continuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-State party to an armed conflict. Thus, individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function. An individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act. This case must be distinguished from persons comparable to reservists who, after a period of basic training or active membership, leave the armed group and reintegrate into civilian life. Such “reservists” are civilians until and for such time as they are called back to active duty.” ICRC Direct Participation in Hostilities

    Based on the computer files captured during the raid, it is clear that Bin Laden was actively engaged in the preparation and planning of attacks in the current armed conflict. Proximity to the conflict is not required if, as in this case, there is direct involvement in a command or staff role.

    Also, the term “war” has a general non-technical use. The enemy in the Vietnam War (Viet Cong) was not a country. The enemy in the Korean War (DPRK) was not the recognized government of any recognized country at the time (since the world regarded Korea as a single country with two occupation zones until after the cease fire). The Boer War was not against any recognized country. The Civil War would have been called that without the decision of the Europeans to recognize the Belligerent status of the CSA thanks to Lincoln’s decision to declare a Blockade (which assumes Belligerent status). Of course, if you insist that formal Belligerent status is important, I know of no plausible objection that either administration would have raised to the designation of AQ or the Taliban as a Belligerent. In this war, such a designation has no downside.

  13. Somin does not come off well in this exchange.  His initial argument was primarily moral, rather than legal, and he would have done better to keep it at that level. 

    The proposition that if it is moral to target the military leaders of a country with which one is at war, it is surely also moral to target the leaders of terrorist organizations, is a strong argument – at least on moral grounds.  If Somin had made Kevin defend the converse, he might have done well.  But international law does not have a special category for terrorist organizations.  So,  to justify such killing legally, you have to try to fit it into IHL or “naked” self defense or – pehaps even more absurdly – IHRL. 

    Somin was not equipped to make the legal argument, in part because of his lack of expertise, but not least because it is exceedingly difficult to do so respectably.

    I think it unfortunate that the exchange took the course it did.  The real collision in Somin’s frustration with international lawyers is not (or at least not primarily) between Somin’s moral sensibility and the lawyers’ left ideology – it is, rather, between Somin’s moral sensibility and the contours of international law itself.

    Is international law as presently structured adequate to handle the emergence of well-funded terrorist organizations oriented toward mass casualty attacks?  Do the rigid categories of the Hague and Geneva – and even of much IHRL – all written during the apex of the powers of the nation-state, continue to represent the summum bonum of all moral use of force in a world whose landscape of powers and threats looks markedly different?

    That would have been an exchange worth listening to.

  14. Nathan,

    Well said.

Trackbacks and Pingbacks

  1. [...] II is widely considered to be legal, he noted, so killing bin Laden must be legal as well.  But, as Heller retorted, such a statement demonstrates that Somin lacks an understanding of the fundamentals of [...]